Nastrom et al v. New Century Mortgage Corporation et al

Filing 5

FINDINGS and RECOMMENDATIONS Regarding Denial of 2 MOTION to PROCEED IN FORMA PAUPERIS, signed by Magistrate Judge Dennis L. Beck on 12/7/2011. Matter referred to Judge O'Neill. (Gaumnitz, R)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

JAMEY L. NASTROM; KIM M.
HEWTON-NASTROM,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

10
Plaintiffs,
11
v.
12
13

NEW CENTURY MORTGAGE,
CORPORATION, et al.,

14
15

Defendants.

1:11cv01998 LJO DLB
FINDINGS AND RECOMMENDATIONS
REGARDING DENIAL OF APPLICATION TO
PROCEED IN FORMA PAUPERIS
(Document 2)

)
16
17

Plaintiffs Jamey L. Nastrom and Kim M. Hewton-Nastrom (“Plaintiffs”), proceeding pro

18

se, filed this action on November 22, 2011, along with an application to proceed in forma

19

pauperis.

20

I.

Application to Proceed In Forma Pauperis

21

Title 28 U.S.C. § 1915(a)(1) provides that any court of the United States may authorize

22

the commencement, prosecution of defense of any civil or criminal suit, action, proceeding, or

23

any appeal therein, without prepayment of fees or security therefor, by a person who submits an

24

affidavit that includes a statement of all assets the person possesses and that the person is unable

25

to pay such fees or give security therefor.

26

It has been held that “one need not be absolutely destitute to obtain benefits of the in

27

forma pauperis statute.” Jefferson v. U.S.A., 277 F.2d 723, 724 (9th Cir.1960). Yet, a “showing

28

of something more than mere hardship must be made.” Martin v. Gulf States Utilities Co., 221
1

1

F.Supp. 757, 759 (W.D.La.1963). And wherever upon the spectrum a complainant may fall, “it

2

is proper and indeed essential for the supporting affidavits to state the facts as to affiant’s poverty

3

with some particularity, definiteness and certainty.” Jefferson, 277 F.2d at 725.

4

In the application, Plaintiff Jamey L. Nastrom states that he is employed at Sutter Central

5

Valley Hospitals (Memorial Hospital) in Modesto, California and at the County of San Joaquin

6

Auditor-Controller in Stockton, California. According to the affidavit, he earns approximately

7

$46,000 gross income per year from the two jobs. He owns a home valued at $52,000, four

8

vehicles, two ATVs and two flat bed trailers. He has two monthly mortgage payments totaling

9

over $1,800.00 and debts totaling $78,274.08. He supports his son and daughter. In addition to

10

ordinary expenses, such as utilities and insurance, he has listed expenses that include

11

cosmetics/haircuts and tobacco products. Based on the affidavit, the Court finds that Plaintiff has

12

not demonstrated that he is unable to pay or guarantee costs without sacrificing the necessities of

13

life.1 Accordingly, the Court will recommend that Plaintiff’s application to proceed in forma

14

pauperis be denied and that Plaintiffs be ordered to pay the $350.00 filing fee.

15

II.

16

Pending Bankruptcy
In the application to proceed in forma pauperis, Plaintiff Jamey L. Nastrom states that

17

there is a pending bankruptcy case, numbered 11-98377. Plaintiff has failed to provide the Court

18

with any information concerning the nature and status of the bankruptcy proceeding.

19

Accordingly, the Court requests that Plaintiffs provide a statement on the status of the bankruptcy

20

proceedings within thirty (30) days of the date of this order. The statement should include the

21

following:

22

(1) the type of bankruptcy filing, e.g., Chapter 7;

23

(2) the date of filing;

24

(3) any pending or forthcoming stays;

25
26
27
28

1

The affidavit in support of the application is signed by Plaintiff Jamey L. Nastrom. Plaintiff Kim M.
Hewton-Nastrom has not submitted an application or a signed affidavit to proceed in forma pauperis. According to
documents attached to the complaint, Plaintiffs Jamey L. Nastrom and Kim M. Hewton-Nastrom are husband and
wife. The Court’s finding that Plaintiff Jamey L. Nastrom is able to pay or guarantee costs without sacrificing the
necessities of life also would apply to his wife.

2

1

(4) if there is a trustee administering the estate; and

2

(5) if the causes of action asserted in this case (or the underlying real property) are listed

3

or will be listed as an asset of the estate.

4

CONCLUSION AND RECOMMENDATION

5

For the reasons stated, Plaintiffs are HEREBY ORDERED to provide a statement

6

regarding the status of pending bankruptcy case numbered 11-98377 within thirty (30) days of

7

the date of this order.

8

The Court also HEREBY RECOMMENDS that Plaintiff’s application be DENIED and

9

that Plaintiff be ORDERED to pay the $350.00 filing fee. This Findings and Recommendation

10

will be submitted to the Honorable Lawrence J. O’Neill, pursuant to the provisions of Title 28

11

U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and

12

Recommendations, Plaintiff may file written objections with the Court. The document should be

13

captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is

14

advised that failure to file objections within the specified time may waive the right to appeal the

15

District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

16
17

IT IS SO ORDERED.
Dated:
3b142a

December 7, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
3